This
matter is before the Court on a Motion for Turnover of
Trademarks (and for any Funds Received as Royalties Since the
Purported Transfer) (“Motion for Turnover”) filed
by Defendant Christopher Muylle (“Muylle”)
(Filing No. 620); a Motion to Strike or Disregard
Unsupported Factual Assertions, Legal Conclusions and/or
Other Irrelevant, Scandalous and/or Harassing Allegations
filed by Plaintiff Wine & Canvas Development LLC
(“WNC”) (Filing No. 627); and a Motion
to Strike Omnibus Filing (ECF 628), for Admonishment of
Muylle and Counsel; and, Alternatively, for Extension of Time
filed by WNC (Filing No. 629). The Court will
address each motion in turn.

I.
MUYLLE'S MOTION FOR TURNOVER OF
TRADEMARKS

Muylle
asks the Court to order that the “Wine and
Canvas” trademark (the “Mark”) be turned
over to him, along with any royalties earned therefrom, until
his judgments in this case against counterclaim defendants
WNC, Anthony Scott (“A. Scott”), and Tamara Scott
(“T. Scott”) are satisfied. WNC originally
registered the Mark, and it was owned by WNC when WNC
commenced this suit. An agreement signed by WNC and non-party
Wine and Canvas IP Holdings, LLC (“WNC IP”) on
January 1, 2012, purports to assign the Mark to WNC IP.
Muylle argues two legal bases to compel the surrender of the
Mark to him. First, WNC's transfer of the Mark to WNC IP
was a fraudulent transfer under Indiana Code §§
32-18-2-14 and 32-18-2-15, and, second, WNC IP is the alter
ego of WNC and/or the Scotts. Under the first theory,
WNC's transfer of the Mark would be voidable and
ineffective regarding Muylle, which permits him to reach the
Mark and its royalties in the hands of either WNC or WNC IP
as if the transfer did not occur. Under the second theory,
WNC and WNC IP are deemed to be one entity, which permits
Muylle to reach the Mark and its royalties from WNC. The
Court will treat Muylle's Motion for Turnover as part of
the proceedings supplemental to collect his judgments.

A.
Procedural Background

This
case was initiated on November 29, 2011, by WNC filing its
original complaint in Indiana state court (Filing No.
1;Filing No. 1-1). Defendants Theodore Weisser
(“Weisser”) and Muylle removed the case to this
Court in December 2011. On September 4, 2012, WNC filed its
operative Amended Verified Complaint for Declaratory
Judgement, Injunctive Relief and Damages
(“Complaint”) (Filing No. 36). The
Complaint pled claims of trademark infringement, false
designation of origin, trademark dilution, and counterfeit
marks, all under the Lanham Act, based on Muylle's
alleged use of WNC's trademarks, particularly the
“Wine and Canvas” Mark at issue in this
Motion.[1] In April 2013, Muylle filed his operative
answer to WNC's Complaint (“Answer”)
(Filing No. 66). In his Answer, Muylle pled
counterclaims against WNC for cancellation of the Mark's
registration and for abuse of process, and he joined
non-parties Anthony Scott and Tamara Scott (“the
Scotts”) as defendants to the abuse-of-process
counterclaim.[2] WNC's and the Scotts' answer to
Muylle's counterclaims-Amended Answer, Defenses &
Counterclaims (Filing No. 101)-included state-law
counterclaims by the Scotts against Muylle for abuse of
process, improper taking, conversion, and unfair competition.

On
August 15, 2014, the Court entered summary judgment against
Muylle's counterclaim to cancel the Mark and against all
of WNC's claims against Muylle except for its claims for
trademark infringement and false designation of origin
(Filing No. 341). Muylle's counterclaim for
abuse of process also survived summary judgment. All of the
surviving claims were tried to a jury from November 17
through 20, 2014. The jury returned a verdict in favor of
Muylle on WNC's claims against him and on his
counterclaim for abuse of process. The jury awarded Muylle
$81, 000.00 against WNC, $81, 000.00 against A. Scott, and
$81, 000.00 against T. Scott (Filing No. 444). The
Court later awarded Muylle his fees and costs in the amounts
of $175, 882.68 against WNC and $1, 661.30 against WNC and
the Scotts (Filing No. 535;Filing No.
549).

The
Court earlier had entered default judgment against defendants
Weisser, YN Canvas CA, LLC, and Weisser Management Group, LLC
on WNC's claims, and the Court held a hearing on damages
on March 2, 2015. It awarded WNC damages of $5, 088.39
against YN Canvas CA, LLC. The Court also awarded WNC its
costs and issued an injunction prohibiting these three
defendants from infringing WNC's trademarks (Filing
No. 510).

According
to Muylle, as of June 2016, the only payments that he has
received on his judgments has been T. Scott's remittance
of $3, 515.65 pursuant to a garnishment order (Filing No.
620 at 2). He has pursued proceedings supplemental to
collect on his judgments.

On
January 1, 2012, A. Scott signed an Intellectual Property
Agreement (“IP Agreement”) (Filing No.
613) as “Manager” for the two signatory
parties, WNC and WNC IP. The IP Agreement transferred all
rights, title, and interest in all of WNC's intellectual
property (including trademarks, copyrights, and domain
names), except for the Mark, to WNC IP. The Mark was
temporarily retained by WNC with the provision that,

ownership of the Mark shall not vest in Transferee [WNC IP]
until the occurrence of any of the following (whichever shall
occur first): (1) the dismissal of all claims against all
parties WITH PREJUDICE in Litigation [meaning this lawsuit];
(2) a final judgment as to all parties and all claims in the
Litigation, (3) the trial on the merits in the Litigation,
(4) a settlement signed by all parties to the Litigation, (5)
a written document executed by both Transferor and Transferee
subsequent to date hereof transferring ownership of the Mark
by Transferor to Transferee; or (6) upon the passage of ten
(10) years from the date hereof, at which time ownership of
the Mark shall automatically vest in Transferee . . . .

IP
Agreement, ¶ 1. The agreement also provided that, in the
interim, before full ownership “vested”, WNC IP
would have an irrevocable and exclusive worldwide license to
use the Mark in its discretion, including “the
exclusive right to license the Mark and to generate income
therefrom.” Id. The agreement provided that
WNC IP would pay WNC one hundred dollars and grant it an
irrevocable non-exclusive license to use the Mark in
connection with WNC's Indianapolis location for a term of
twenty years. Id.

The
January 1, 2012 execution of the IP Agreement occurred one
month after this suit was filed, nine months before Muylle
filed his first counterclaims against WNC (for violation of
California's franchising code and cancellation of the
Mark), and sixteen months before Muylle filed his operative
amended counterclaims, which added the claim for abuse of
process and added the Scotts as counterclaim defendants on
that claim.

The IP
Agreement's initial recitals include an acknowledgement
of the pendency of this suit. It also includes a recital
explaining the genesis of the agreement. It states that,
prior to this suit being filed, Weisser, serving as a
consultant, was in the process of developing a system for
expanding the Wine & Canvas concept throughout the United
States. That system included the creation of WNC and WNC IP
with WNC owning and operating the Indianapolis location and
WNC IP owning and controlling all of the intellectual
property. However, after Weisser left, it was discovered that
he had organized only WNC and not WNC IP. The recital noted
that WNC IP had si nce been organized[4] and that the IP Agreement
was intended to fulfill the original business plan for WNC IP
to acquire and hold WNC's intellectual property. IP
Agreement at 1.

On
August 29, 2014, an affidavit by A. Scott was submitted in
support of WNC's motion to dismiss a separate copyright
suit in the Middle District of Florida (Filing No. 626-1
at 51-75). In this affidavit, A. Scott states that WNC
IP “is the exclusive owners of multiple trademarks (by
rights granted by [WNC] and by title), both unregistered and
registered. Such marks include common law trademarks, service
marks, other marks and (1) that certain trademark ‘WINE
AND CANVAS' registered with United States Patent and
Trademark Office . . . .” Id. at 51-52. On
November 3, 2014, A. Scott submitted a second affidavit in
support of WNC's reply in order to refute an assertion
that WNC IP had falsely averred that it was the exclusive
owner of the Mark. In this affidavit, A. Scott amended his
previous one by averring that, while WNC IP acquired other
trademarks of WNC and acquired some exclusive rights in the
Mark, WNC, not WNC IP, was the owner of the Mark.
Id. at 76-81, ¶¶ 8-10.

Near
the end of the jury trial in November 2014, Muylle filed his
Motion for Judgment as a Matter of Law (Filing No.
434). He argued that WNC lacked standing to maintain a
claim for infringement of the Mark because it had assigned
the Mark to WNC IP. Citing Specht v. Google, Inc.,
747 F.3d 929, 933 (7th Cir. 2014), he argued that only the
current owner or registrant of a trademark has standing to
assert an infringement claim. The Court heard argument and
took testimony on the motion. The factual basis for his
contention that WNC had transferred the Mark to WNC IP was A.
Scott's averments in his first Florida affidavit that WNC
IP is the exclusive owner of the Mark (Filing No. 626-1
at 14, 29, 42-45). A. Scott testified that WNC is the
exclusive owner of the Mark while WNC IP has the exclusive
right to license the Mark as well as owning other trademarks.
Id. at 32-33, 35, 38, 46. The Court denied
Muylle's motion, concluding that there was no evidence
that anyone other than WNC was the owner of the Mark at the
time that it was registered. Id. at 48.

On
January 1, 2015, WNC and WNC IP executed a Trademark
Ownership Acknowledgement (“Acknowledgement”).
Id. at 9. A. Scott again signed on behalf of both
parties, this time in his capacity as “President”
of each entity. By this instrument, WNC and WNC IP
acknowledged the occurrence of one of the “trigger
events” in the IP Agreement by which WNC IP
“automatically acquired ownership of the Mark, ”
namely, the completion of the trial on the merits in this
suit. They agreed that, pursuant thereto, “all rights,
title and interest in and to the Mark that have no[t]
previously been transferred by [WNC] to [WNC IP] are now
transferred in full . . . .” Id. The
Acknowledgement was executed after the November 2014 trial
and verdict but before the March 2, 2015 damages hearing on
the defaulted claims.

There
has been no assertion or showing that copies of the IP
Agreement or the Acknowledgement were produced, or their
terms were disclosed, to Muylle until March 2016.

C.
Discussion

In his
Motion for Turnover, Muylle asserts that his counsel first
became aware of the IP Agreement and the Acknowledgement on
March 7, 2016, when his counsel was given copies of the
documents during a creditors' meeting in WNC's
bankruptcy proceeding. He asserts that the documents show
that WNC did not own the Mark as of, at the latest, January
1, 2015, the date of the Acknowledgement. He also contends
that the consideration that WNC IP gave to WNC for the
transfer was substantially less than the reasonable value of
the Mark. Muylle does not affirmatively and decisively assert
that the Mark was, in fact, transferred to WNC IP. Rather he
argues under two theories that, even if it was transferred,
he is entitled to a turnover of the Mark and all royalties
earned therefrom until his judgments are satisfied.

First,
a transfer from WNC to WNC IP was a fraudulent transfer which
renders it voidable as to him under Indiana Code §§
32-18-2-14 and 32-18-2-15. In support of this argument,
Muylle relies on the IP Agreement, the Acknowledgement, A.
Scott's trial testimony, and the U.S. Patent and
Trademark Office's electronic registration record of the
Mark as of May 11, 2016, which shows WNC as the owner of the
Mark. Second, Muylle argues that WNC IP is only an alter ego
of WNC and/or the Scotts, which renders the Mark reachable
through WNC. In support of this theory, Muylle refers to the
Scotts' testimony at the hearing on proceedings
supplemental and discovery responses.

WNC
gives several responses. First, it argues that Muylle has not
designated or authenticated admissible evidence in support of
his motion. Second, because obtaining the Mark from WNC
IP's possession under the theory of fraudulent transfer
or from WNC's possession under an alter ego theory
requires that a transfer occurred, Muylle must assert that
there was a transfer, yet he takes no position on the
question and has previously asserted that no transfer took
place. Third, the Court lacks jurisdiction to hear what
amounts to a new claim against non-party WNC IP to quiet
title to the Mark without all the proper procedures of an
independent suit, including trial.[5] Fourth, WNC argues that the
elements of a fraudulent transfer are not shown. WNC does not
address the merits of Muylle's alter ego argument.

1.
Fraudulent transfer under Indiana Code §
32-18-2-14.

A
transfer made or an obligation incurred by a debtor is
fraudulent as to a creditor, whether the creditor's claim
arose before or after the transfer was made or the obligation
was incurred, if the debtor made the transfer or incurred the
obligation:

(1) with actual intent to hinder, delay, or defraud any
creditor of the debtor; or

(2) without receiving a reasonably equivalent value in
exchange for the transfer or obligation, and the debtor:

(A) was engaged or was about to engage in a business or a
transaction for which the remaining assets of the debtor were
unreasonably small in relation to the business or
transaction; or

(B) intended to incur or believed or reasonably should have
believed that the debtor would incur debts beyond the
debtor's ...

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